Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The Lampert case It can be seen from a reading of the judgment in the more recent case of Lampert that in 1991 France adopted an amendment to the Code of Criminal Procedure concerning the confidentiality of telecommunications messages, which laid down “clear, detailed rules” and specified “with sufficient clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities”.36 Yet article 8 was also violated in this case on the basis that the applicant “did not enjoy the effective protection of national law, which does not make any distinction according to whose line is being tapped”.37 What had happened in this case was that the applicant was charged with handling the proceeds of aggravated theft after some of his conversations had been intercepted as he called another person whose telephone was being tapped. The applicant’s lawyer appealed against two extensions of the duration of the telephone tapping, but on appeal the Court of Cassation ruled, in particular, “that the applicant had ‘no locus standi to challenge the manner in which the duration of the monitoring of a third party’s telephone line was extended’”.38 The European Court accepted that the interference with the applicant’s right to respect for his privacy and correspondence “was designed to establish the truth in connection with criminal proceedings and therefore to prevent disorder”.39 However, the fact that the Court of Cassation had refused the applicant locus standi to challenge the extension of the duration of the wire tapping could, in the view of the European Court, “lead to decisions whereby a very large number of people are deprived of the protection of the law, namely all those who have conversations on a telephone line other than their own”; that “would in practice render the protective machinery largely devoid of substance”. It followed that the applicant had not had “available to him the ‘effective control’ to which citizens are entitled under the rule of law and which would have been capable of restricting the interference in question to what was ‘necessary in a democratic society’”.40 While there is always a danger in extrapolating from the European jurisprudence, it would seem reasonable to conclude that under the International Covenant too, as well as the American Convention, the right of the judicial authorities to resort to interception of telephone conversations will be relatively strictly interpreted in favour of the right to respect for one’s privacy, and that, as a minimum, such interference in the exercise of this right must be clearly based in the domestic law, imposed for a specific and legitimate purpose, and be accompanied by adequate safeguards and remedies for the persons whose telephone is tapped. 36 Eur. Court HR, Case of Lampert v. France, judgment of 24 August 1998, Reports 1998-V, p. 2240, para. 28. This is one interesting example among many reflecting the impact that the jurisprudence of the European Court of Human Rights has on domestic legislation. 37 Ibid., p. 2242, para. 39. 38 Ibid., p. 2235, paras. 8-10 and p. 2236, para. 14; second emphasis added. 39 Ibid., p. 2240, para. 29. 40 Ibid., p. 2241-2242, paras. 38-40. 226 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers